Prenuptial contracts in English law: capricious outcomes or legislative clarification?

Abstract

This article examines the weight currently given to pre-nuptial contracts in English law, focusing particularly on three recent cases heard in the Court of Appeal and Privy Council. The article first explores the Court of Appeal's use of the words ‘magnetic importance’ to give weight to certain pre-nuptial contracts in Crossley (2008 1 FLR 1467); second, the more orthodox distinction drawn between pre and postnuptial contracts in MacLeod (2009 1 FLR 64) and finally the implications of the decision in Radmacher v. Granatino (2009 2 FLR 1181). The article examines various critical factors which affect the assessment of such contracts in English and Welsh law and concludes that the current uncertainty and unpredictability of the law requires legislative clarification by means of the creation of a statutory presumption of enforceability of such contracts, subject to some legislative direction and guidelines.

Keywords:

• pre-nuptial
• ‘magnetic importance’
• postnuptial